FCC backs off on timing, but not substance of municipal wireless property preemption

The final version of the Federal Communications Commission’s ruling preempting local ownership of street lights, traffic signals and other publicly owned property in the public right of way has been posted. It gives cities and counties more time to comply with its diktats – that’s the major change I spotted last night as I was reading through it.

Originally, the ruling was set to take effect 30 days after it’s published in the Federal Register. That deadline was extended to 90 days, except for updated aesthetic requirements, which won’t come into play until 180 days after publication.

That’s assuming it has any effect at all. The U.S. Conference of Mayors promised to challenge it in court shortly after the FCC voted on Wednesday, mostly along party lines, to adopt the new rules. Other organisations representing cities and counties have likewise indicated that they’ll sue. Typically, that would also happen after it’s published in the Federal Register. It might be two or three months before publication, though. The Trump administration has to review it, primarily to make sure the red tape on it is properly tied.

The ruling shortens the time period – the “shot clock” – for local governments to make a decision on permit applications for “small wireless facilities” (which, by the FCC’s definition, aren’t necessary very small). For a new pole or tower, a city would have 90 days to reach a final decision. Colocation permits would have to be approved or denied within 60 days. The FCC wants to redefine “colocation” to include attachment to any existing structure, rather than to a structure that already has wireless equipment on it, as pretty much the rest of the world understands it. It might get away with it – federal courts have affirmed the FCC’s authority to set shot clocks.

But not to enforce them. That power still belongs to judges. So will the job of deciding whether lease rates for municipal property and permit fees are cost-based and reasonable – California law has something to say about that. Courts might or might not accept the FCC’s opinion – and that’s really all it most of the ruling is – regarding how Californian cities and counties should manage their affairs.